Month: February 2017

It’s rare that the filing of an ethics complaint makes the news. However, that’s exactly what happened last week when a group of law professors filed an ethics complaint against Kellyanne Conway. And, I found a way to relate the complaint to Vermont. Bear with me.

The complaint alleges that Ms. Conway violated Rule 8.4(c) of the D.C. Rules of Professional Conduct. The rule states that “[i]t is professional misconduct for a lawyer to [e]ngage in conduct involving dishonesty, fraud, deceit or misrepresentation.” By way of summary, the complaint alleges that Ms. Conway violated the rule by:

in an interview with MSNBC, justifying President Trump’s executive order on immigration by referring to the “Bowling Green Massacre” when she knew there was no such massacre; and,

in the same interview, falsely stating that President Obama had “banned” Iraqi refugees for 6 months following the “Bowling Green Massacre”; and,

putting forth “alternative facts” about the size of the crowd at President Trump’s inauguration.

Finally, the complaint alleges that Ms. Conway violated the federal government’s conflict of interest rules by using her position to endorse Ivanka Trump’s products during an interview conducted in the White House briefing room.

Addressing the allegations in reverse order, the New York Times ran this piece on Conway’s endorsement of Ms. Trump’s product line. Fashionista, a sister-site to Above The Law, posted a blog calling the endorsement “pretty illegal.”

The federal government’s internal ethics rules, however, are not my bailiwick. So, back to the allegations that Conway violated Rule 8.4(c).

The National Law Journal suggests that the investigation of the complaint against Conway might take a long time. Regardless of how long it takes to investigate the complaint, at least 2 law professors have voiced strong opinions that it should not result in discipline.

Over at Slate, Steven Lubet, wrote that “[a]s a liberal Democrat, I have no sympathy for Conway’s habitual disregard for truth. As a professor of legal ethics, however, I think this complaint is dangerously misguided and has the potential to set a terrible precedent.” His rationale is here.

Jonathan Turley, a law professor at George Washington, wrote that he “fail[s] to see the basis for a formal ethics charge based solely on the product endorsement and view[s] the other references as bordering on frivolous as the foundation for an ethics complaint.” His entire blog entry is here.

Disclosure: I attended GW Law. Professor Turley taught my property law class. As he notes, he also taught Ms. Conway. I did not know her. Professor Turley’s blog indicates that she graduated in 1995. However, a classmate told me that she was a year ahead of us. I graduated in 1993. And, per her Wikipedia page, she graduated in 1992.

Vermont’s Rule 8.4(c) is identical to D.C.’s. Interestingly, in their complaint against Ms. Conway, the professors noted that “[g]enerally speaking, we do not believe that lawyers should face discipline under this Rule for public or private dishonesty or misrepresentation unless the lawyer’s conduct calls into serious question his or her ‘fitness for the practice of law.’ ” (emphasis added).

Why is this “interesting”? Because it’s almost exactly what the Vermont Supreme Court has said. Bear with me some more.

In addition to Rule 8.4(c)’s prohibition of conduct involving dishonesty, fraud, deceit and misrepresentation, Rule 4.1 states that “[i]n the course of representing a client a lawyer shall not make a false statement of material fact or law to a third person.” If a lawyer vioalates Rule 4.1 by making a false statement of material fact, the lawyer must also violate Rule 8.4(c) by engaging in conduct involving dishonesty, deception, and misreprentation, right?

The Vermont Supreme Court has addressed the question. The Court’s decision is here. It appears at 2009 VT 115. The Court stated:

“If Rule 8.4(c) is interpreted to automatically prohibit ‘misrepresentations’ in all circumstances, Rule 4.1 would be entirely superfluous. There must be some meaning for Rule 8.4(c) independent of Rule 4.1 – for we presume that the drafters meant every rule to have some meaning.” (emphasis in the original).

Thus, the Court limited Rule 8.4(c) to misrepresentations that “reflect adversely on a lawyer’s fitness to practice law.”

Sound familiar? It should. It’s exactly what the law professors said in the complaint that they filed against Ms. Conway. And I think I know why they said it.

In reaching its decision that Rule 8.4(c) is limited to misrepresentations that adversely reflect on a lawyer’s fitness to practice, the Vermont Supreme Court cited to, among other sources, an advisory ethics opinion from, that’s right, the District of Columbia.

“Lawyers employed by government agencies who act in a non-representational official capacity in a manner they reasonably believe to be authorized by law do not violate Rule 8.4 if, in the course of their employment, they make misrepresentations that are reasonably intended to further the conduct of their official duties”

To their credit, the professors who filed the complaint against Ms. Conway cited to Ethics Opinion 323. However, citing to the ABA Model Rules, the professors stated that they filed the complaint as a result of their belief that “lawyers in public office – Ms. Conway is Counselor to the President – have a higher obligation to avoid conduct involving dishonest [sic], deceit, fraud, deceit or misrepresentation than other lawyers.”

Where am I going with all this? Nowhere. Just thought I’d fill you in on the world’s most famous ethics complaint and its connection, however slight, to Vermont.

True or false? A lawyer may not accept representation in a matter that involves an area of law in which the lawyer does not possess the requisite level of competence to provide competent representation to the client.

False. See, V.R.Pr.C., 1.1, Comment [4] “A lawyer may accept representation where the requisite level of competence may be achieved through reasonable preparation.”

Question 2

Which does not belong?

A. The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.

B. The representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or proceeding

C. Each affected client gives informed consent confirmed in writing.

D. The court approves the agreement.

Options A, B,C factor into analyis of whether a conflict of interest can be waived. See, Rule 1.7(b). “D” does not.

Question 3

NL intends to represent himself in a divorce. NL contacted Attorney for advice on how to present evidence & argument in court. Before answering, Attorney called me to inquire whether advising NL on how to present evidence and argument would violate the rule that prohibits lawyers from assisting in the unauthorized practice of law. Most likely, my answer was:

A. The rule is silent, but case law says “no.”

B. The rule is silent, but case law says “maybe, depending on the circumstances.”

C. Per a comment to the rule, “no.” See, V.R.Pr.C. 5.5, Comment 3. (“In addition, a lawyer may counsel nonlawyers who wish to proceed pro se.”

D. If you want to know the answer, come to the chili contest and vote for my brother.

Note: Best answer of the week was Allison Wannop’s to this question: “D, where you’ll tell Attorney “C”.”

Question 4

Lawyer called me with an inquiry. Our discussion focused on the key distinction between (1) information that has become generally known and (2) information that is in the public record.

Identify the general topic that, most likely, Lawyer called to discuss.

Saturday mornings aren’t conducive to CLE-type posts on the hottest topic in legal ethics. Especially unusually warm Saturday mornings that beg for a long run. So, before I hit the road, I thought I’d use two of my favorite topics, running & ethics, to share a message that’s relevant to both attorney discipline and the attorney admissions process.

Like the law, running has its own code of ethics. The rules & violations run the gamut from innocuous to the “disbarable.” For example, it’s not cool to start up front if you know you’re going to finish near the back. The first quarter mile of any race is crowded. Faster runners get irritated, and risk injury, having to dodge someone ambling along, not to mention 3 friends ambling along side-by-side as they chat. But this merits only an admonition.

A more serious (and frequent) violation is the all-too-common instance in which a runner wears headphones during a race. Most races ban headphones for safety and insurance reasons. Runners know this, but justify it by “I can’t run without music.” True. Nor can you hear someone asking to pass you or warn you that a car is coming. Public reprimand.

Finally, like any other profession or activity in which people are involved, running includes cheaters. How does a runner cheat? Taking a shortcut. Or, giving a bib to someone who is faster and then using the result as their own. Cheating often occurs in an attempt to secure a marathon time that qualifies for the Boston Marathon. Cheating warrants suspension & disbarment.

Here’s what runner-cheats have in common with lawyers who violate the Rules of Professional Conduct or who lie on their applications for admission to the bar: the cover-up is worse than the crime.

The woman apparently needed to finish in better than 1:24:00 in order to qualify for an elite group within her local running club. So, she took a shortcut that reduced the distance from 13.1 miles to 11.65. Then, she lost her mind.

Turns out, after taking the shortcut, she finished 2nd. Instead of simply going home, she stuck around and accepted the award for 2nd place. Around the same time, race officials became suspicious after noticing that she ran the latter part of the race significantly faster than the early stages. When confronted, the runner denied having cheated. Then she really lost her mind.

In an attempt to prove that she’d run the full distance, the woman hopped on her bike and rode the course. As she did, she turned on her GPS so that she’d have a record of having traversed the full race route. Then, she posted her “award” and GPS data to social media sites, as well as to Strava, a site that runners use to post their workouts and race results.

Even when initially contacted by Marathon Investigation, the woman didn’t immediately fess up. Not surprisingly though, the gig soon was up.

Her decision to cut the course was wrong. But her actions following that decision were worse.

That’s how it goes in attorney discipline and attorney admissions. A Lawyer who violates the rules, but accepts responsibility, is likely to receive a lesser sanction than the lawyer who commits the same violation but then denies it, blames someone else, or tries to make it look like it never happened. Similarly, applicants for admission who are candid about their past are far more likely to be approved by the Character & Fitness Committee than the applicant who fails to disclose conduct that, inevitably, will be discovered in the review process.

In each instance, it’s true no matter how minor the violation or the misdeed left off the bar application. The violation or misdeed is not the issue: it’s the decision to justify it or try to hide it that is.

So, that’s my tips for lawyers and bar applicants. If you do something wrong, own it. Life will go on. Not only that, life will go on in a way that turns out better for you than if you try to cover up conduct that will eventually be discovered.

My brother is one of the few non-lawyers who regularly submits answers to the Five for Friday ethics quiz. He’s earned permanent honor roll status.

In addition to having an impressive knowledge of legal ethics, Patrick is a fantastic cook. One of his specialties: chili. Show me a chili contest that he hasn’t won and I’ll show you a chili contest that he hasn’t entered.

Tomorrow, the Pour House hosts the 6th Annual Mike Loyer Chili Contest. While this is the 6th edition since re-naming the contest in Mike’s honor following his tragic passing, the Pour House Chili Contest dates to 2005. My brother won in 2005 and has either won or placed in the top 3 several times since.

Patrick has yet to decide whether to enter. That’s how the true greats roll, no matter the area of competition. If the mood strikes, they’re not only in, they’re a threat to win. Rumor is that Patrick will enter if he finds the appropriate meat (he’s used hamburger, steak, alligator, snake, elk, and vension in previous entries).

If you’re in the area, stop by. Not only will you get to sample some great chili, but you might find yourself in the presence of, to my knowledge, the only person ever to make the Five for Friday honor roll AND win the Pour House Chili Contest.

Now, for the quiz. A quick refresher:

No rules. Open book , open search engine, ask your friends

Exception: #5

Team entries welcome; creative team names encouraged

Please share with colleagues

Unless stated otherwise the Rules of Professional Conduct

email answers to michael.kennedy@vermont.gov

I’ll post the answers on Monday

Question 1

True or false? A lawyer may not accept representation in a matter that involves an area of law in which the lawyer does not possess the requisite level of competence to provide competent representation to the client.

Question 2

Which does not belong?

A. The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.

B. The representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or proceeding

C. Each affected client gives informed consent confirmed in writing.

D. The court approves the agreement.

Question 3

NL intends to represent himself in a divorce. NL contacted Attorney for advice on how to present evidence & argument in court. Before answering, Attorney called me to inquire whether advising NL on how to present evidence and argument would violate the rule that prohibits lawyers from assisting in the unauthorized practice of law. Most likely, my answer was:

A. The rule is silent, but case law says “no.”

B. The rule is silent, but case law says “maybe, depending on the circumstances.”

C. Per a comment to the rule, “no.”

D. If you want to know the answer, come to the chili contest and vote for my brother.

Question 4

Lawyer called me with an inquiry. Our discussion focused on the key distinction between (1) information that has become generally known and (2) information that is in the public record.

Identify the general topic that, most likely, Lawyer called to discuss.

Question 5

Maurice Levy was an attorney on television. Among other things, Levy

earned most of his fees providing criminal defense to the Barksdale Organization and its various members

advised & assisted the Stanfield Organization to launder money

used firm money to buy search warrants from a prosecutor in order to tip-off clients who were drug dealers

Don’t want to adapt to technology? Or, maybe you feel like you’ve adapted enough? I have two thoughts.

First, there’s no such thing as “i’ve adapted enough.” You know who has “adapted enough?” The lawyer who still uses a typewriter that let’s the lawyer preview a line of text before hitting return. The duty is ongoing. Indeed, here’s Comment 8 to Model Rule 1.1:

[8] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

Second, here’s where Throwback Thursday comes into play. Look what I found while cleaning last night. Don’t want to adapt? Neither did these guys…..until it was too late. To them, sending DVD’s by U.S. Mail was sufficient. There was no need to adapt to a technology that we know as “streaming.”

“Wish there was a place to perform side-by-side comparisons of the top law practice management software?”

Well, ask and ye shall receive!

Lawyerist published a side-by-side comparison of Law Practice Management Software systems. The chart compares the features of 12 law practice management programs. Lawyerist intends to update the chart as appropriate.

You can view the chart HERE. (scroll down, you’ll see a chart. Trust me, the chart has its own scroll bar that will allow you to scroll to the right & view the entire chart).

If you’re considering new law practice management software, the chart appears to be a great resource. As always, remember that a lawyer has a duty to take reasonable precautions when transmitting or storing information relating to a representation.

The bar exam is today and tomorrow. As I type this entry, 40 aspiring members of the Vermont bar are 1 hour and 14 minutes into the exam. I’m one of several proctors.

It’s not exactly legal ethics, but I thought I’d post a primer on the exam. My sense is that not many Vermont attorneys know that the examination process changed significantly in 2016.

In February 2016, the Vermont Supreme Court adopted new Rules of Admission. The rules went into effect on April 18, 2016. Among the most significant changes:

adopting the Uniform Bar Exam

eliminating the so-called “clerkship”

requiring successful examinees to complete Vermont-specific CLE and a “mentorship”

The Uniform Bar Exam

Vermont administers the Uniform Bar Exam (“UBE”). What’s that mean? Most notably, it means that there are no Vermont-specific essays.

For many of you, the bar exam included 6 essay questions drafted by the Board of Bar Examiners that tested Vermont law. No more. Now, the Vermont exam is, well, uniform. That is, an examinee who sits in Vermont takes the exact same exam as an examinee who sits in one of the 25 other UBE jurisdictions.

Essays have not disappeared altogether. It’s just that the essay questions are the same in each UBE jurisdiction.

On the morning of Day 1, examinees take the Multistate Performance Test. The MPT is best described HERE.

On the afternoon of Day 1, examinees take the Multistate Essay Examination. The MEE is best described HERE.

Day 2 of the exam should be familiar to all: the Multistate Bar Examination. You probably know it better as “the multiple choice.”

Scoring has changed a bit as well. Over the past several years, examinees received an MBE score and an essay score. To pass, an examinee had to score at least 135 on both the MBE and the essay. The overall total did not matter. Thus, an examinee who scored 135 on the MBE and a 135 on the essay passed, but an examinee who scored 170 on the MBE and 134 on the essay did not.

Now, examinees receive a UBE score that is a single number. Each UBE jurisdiction is authorized to set its own passing score. Not all are the same. A passing score in Vermont is 270.

UBE scores are portable. In other words, a score is good in every UBE jurisdiction. Like all UBE jurisdictions, Vermont allows examinees to apply for “admission by transferred UBE score.” For example, New Hampshire is a UBE jurisdiction. Odds are that someone who is taking today’s exam in New Hampshire will apply for admission in Vermont. As long as the person scores at least a 270, the person is eligible for admission in Vermont, even having taken the exam in New Hampshire.

Important! Achieving a 270 in another jurisdiction is NOT an automatic ticket into the Vermont bar. Applicants who score at least 270 in another UBE jurisdiction must still go through Vermont’s Character & Fitness review.

Elimination of the Clerkship

Many of you remember the “3-month clerkship.” Some of you might remember the “6-month” clerkship. Each was a pre-admission requirement. Each has been eliminated.

CLE & Mentorship

The clerkship has been replaced by post-admission CLE and mentorship requirements.

complete 15 hours (at least 6 of which must be “live”) of continuing legal education in Vermont practice & procedure that has been approved by the Continuing Legal Education Board and certified by the Board of Bar Examiners; and,

complete a mentorship.

Failure to complete the CLE or mentorship results in an administrative suspension that can only be cured by completion.

The current list of approved CLE courses is HERE. An outline of the mentorship program is HERE.

So, that’s how the bar exam works. And, now, the examinees are 2 hours and 1 minute into the MPT.

On Presidents’ Day, I thought I’d share a message from Linda Klein. Attorney Klein is the current President of the American Bar Association. Her words are far better than any summary I could deliver. So, please read Attorney Klein’s President’s Message from the February edition of the ABA Journal.

“The advocate’s function is to present evidence and argument so that the cause may be decided according to law. Refraining from abusive or obstreperous conduct is a corollary of the advocate’s right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge but should avoid reciprocation; the judge’s default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.”

Finally, as a reminder, the Vermont Bar Association adopted Guidelines of Professional Courtesy in 1989. Here they are:

Guidelines of Professional Courtesy

In fulfilling his or her primary duty to the client, a lawyer must be ever conscious of the broader duty to the legal system.

A lawyer should act with candor, diligence and utmost respect.

A lawyer should act with courtesy and cooperation, which are necessary for the efficient administration of our system of laws.

A lawyer should act with personal dignity and professional integrity.

Lawyers should treat each other, their clients, the opposing parties, the courts, and members of the public with courtesy and civility and conduct themselves in a professional manner at all times.

A client has no right to demand that counsel abuse the opposite party or indulge in offensive conduct. A lawyer shall always treat adverse witnesses and parties with fairness and due consideration.

In adversary proceedings, clients are litigants and though ill feelings may exist between clients, such ill feelings should not influence a lawyer’s conduct, attitude, or demeanortowards opposing lawyers.

A lawyer should not harass opposing counsel or counsel’s clients.

Lawyers should be punctual in communications with others and in honoring scheduled appearances. Neglect and tardiness are demeaning to fellow lawyers and to the legal system.

If a fellow attorney makes a just request for cooperation, or seeks scheduling accommodation, a lawyer shall not arbitrarily or unreasonably withhold consent.

Effective advocacy does not require antagonistic or obnoxious behavior. Lawyers should adhere to the higher standard of conduct which judges, fellow attorneys, clients, and the public may rightfully expect.

“We’re excited about the opportunity this creates to free our lawyers from some of the more mundane legal tasks so they can focus on helping our clients solve their most complex business issues,” explained Seyfarth’s chair emeritus Stephen Poor. “In testing various use cases, we’ve already seen how Blue Prism’s RPA software can help us create exponential gains in productivity, and we’ve only begun to scratch the surface of possibilities.”

A phrase stood out: “[w]e’re excited about the opportunity this creates to free our lawyers from some of the more mundane legal tasks . . ..”

So, it looks to me as if robots will be performing “mundane legal tasks.”

I’m not the least bit surprised. But, from a regulatory perspective, what if the robot gets it wrong?

In Vermont, Rules 5.3(a) & (b) impose responsibilities regarding nonlawyer assistants. Rule 5.3(c) holds a lawyer ethically liable for the conduct of a nonlawyer assistant if the lawyer orders or ratifies it, or if the lawyer has knowledge of a nonlawyer assistant’s conduct and fails to take reasonable remedial action at a time when the consequences can be avoided or mitigated.

As I’ve often said, Rule 1.1’s duty of competence includes tech competence. Read together, do Rules 1.1 and 5.3 require lawyers who use robots to have some sort of understanding of the coder’s qualifications? Perhaps we will eventually treat the purchase of robots as we do the selection of a cloud vendor and hold that “a lawyer must take reasonable precautions in choosing a robot that will perform mundane legal tasks.”

Even beyond choosing the robot, is there a duty to “trust but verify” the robot’s work? I have no idea what “mundane legal tasks” the robots will be doing. However, absent random quality assurance checks, it’s conceivable that the robots could get a task wrong for quite a period of time before anyone realizes it. Not only that, I’d assume that a mistake would result from a programing error and, therefore, could be repeated over & over & over again. Or, will this have been addressed in the testing phase?

The profession’s eventual replacement of humans with machines intrigues me, even if only from an ethics perspective. Are machines burdened by notions of loyalty? If not, will the conflict of interest rules apply to robots?

In any event, this is only the beginning. As the press release goes on to state:

“Blue Prism provides an anchor around which we can refine and test the types of robotics that immediately make our lawyers better and faster,” said Byong Kim, director of technology innovations, SeyfarthLean Consulting. “At its core, this is about arming lawyers with the best technology, and software robots are the latest evolution.”

Lawyer called me with an inquiry. She is closing her practice and has $1500 in trust. She asked what to do with the $1500. What was my likely response?

A. It depends. Do you know whose money it is?

B. The rules require you to keep the funds in trust, even after your office is closed, until they’re disbursed to a client.

C. You should remit the funds to the Vermont Bar Foundation.

D. You should remit the funds to the State Treasurer’s Unclaimed Property Division

This is a problem. It is not uncommon for lawyers to have unexplained funds in their trust accounts. The reasons vary: wire fees that weren’t accounted for, regular failure to withdraw their own fees (aka “commingling”), or simple accounting mistakes.

This is not an exaggeration: the inability to identify the owner of funds held in trust is a violation of the Rules of Professional Conduct. Why? Think about it. What goes into trust? That’s right – funds held in connection with a representation. A lawyer has a duty to safeguard those funds. My position is that “safeguarding” includes knowing how much money is in trust and to whom it belongs.

D was a popular answer. Yes, there’s an advisory ethics opinion that indicates that unclaimed funds remit to the state. However, unclaimed funds are funds for which the owner is known, but cannot be found.

Think of it this way: many of you remember the long list of names that the State Treasurer used to publish in newspapers. If your name was on the list, you had unclaimed property. Lawyers cannot simply send the Treasurer money along with a note that says “not sure whose this is, but I had it in trust.”

Question 2

Attorney called me with an inquiry. Attorney asked about entering into “a nonrefundable, flat fee agreement.” What was my likely response?

A. Don’t. The fee agreement violates the Rules of Professional Conduct

B. To comply with the rules, you must confirm the agreement in writing. See, Rule 1.5(f).

C. To comply with the rules, you must confirm the agreement in a writing that is signed by Client

D. To comply with the rules, the agreement must be in writing and you must deposit the fee into a pooled interest-bearing trust account.

Question 3

When do the rules require banks to provide notification to Disciplinary Counsel?

B. Whenever a trust account check is presented against insufficient funds, but only if the bank honors the check.

C. A . . . and whenever a lawyer authorizes an ACH transaction to or from a trust account.

D. B . . . and whenever a lawyer is issued a debit card that is tied to a trust account.

Question 4

I presented at a CLE. I said that there are 4 situations in which something is allowed:

“Generally, THIS is allowed when THAT results from

A. a personal interest of the lawyer; or

B. work in which the lawyer participated personally and substantially while at a different firm; or

C. work in which the lawyer participated personally and substantially while working as a law clerk or judge; or

D. work the lawyer did prior to transitioning between government work & private practice

For 1 point each, identify THIS and THAT.

SCREENING is allowed when A CONFLICT OF INTEREST results from any of the listed situations. I gave credit for “continued representation” in that the firm can continue, even though the conflicted lawyer cannot.

Question 5

I often say that my job isn’t like professional responsibility class in law school: most complaints are mundane. I’ve yet to receive a complaint that alleges that a lawyer knows where a dead body is, but won’t tell anyone.

Speaking of which, last week I screened a complaint. It included allegations against two attorneys: Roy Foltrigg and Regina Love.

The complaint described “Reverend Roy” Foltrigg as an “ambitious, sleazy, and vain US Attorney who will not hesitate to engage in unethical or illegal conduct to advance his ambitions.”

The complaint described “Reggie” Love as “recovering addict who is nice & does a lot of pro bono work, but who doesn’t always follow the ethics rules, and who has more street smarts than law smarts.”

Wait..was I screening a complaint? No, I think I must have been either reading a book or watching a movie. Yes, I was.